Federal Contractors Must Show Proof of COVID-19 Vaccination by December 8

New guidance from the Biden administration on Friday says that covered federal contractors and subcontractors must be vaccinated against COVID-19 and show proof of it by December 8, unless they are granted an exemption. 

President Biden on September 9 announced a vaccine mandate for federal employees and contractors. The executive order for contractors outlined which contractors were covered and the process leading up to implementation, but was light on other details and left contracting experts with a number of questions. 

“Covered contractor employees must be fully vaccinated no later than December 8, 2021,” unless they are legally exempt, said the guidance from the Safer Federal Workforce Task Force. “After that date, all covered contractor employees must be fully vaccinated by the first day of the period of performance on a newly awarded covered contract, and by the first day of the period of performance on an exercised option or extended or renewed contract when the clause has been incorporated into the covered contract.” The executive order and guidance outline the ramp-up process for incorporating a new clause into new or existing contracts. 

Contractors must designate someone to coordinate the implementation of and compliance with the mandate. Covered contractors must show proof of vaccination. “An attestation of vaccination by the covered contractor employee is not an acceptable substitute for documentation of proof of vaccination,” said the guidance. A recent antibody test is not an acceptable form of proof either and the guidance explicitly says individuals who have had COVID-19 still must get vaccinated. 

The guidance applies to “subcontractors at all tiers, except for subcontracts solely for the provision of products,” said the guidance. It also applies to all workplace locations as well as individuals on remote work or who work outside. However, it does not apply to those who work outside the United States. 

As for exemptions for religious or disability reasons, “the contractor is responsible for considering, and dispositioning, such requests for accommodations regardless of the covered contractor employee’s place of performance,” said the guidance. “If the agency that is the party to the covered contract is a ‘joint employer’ for purposes of compliance with the Rehabilitation Act and Title VII of the Civil Rights Act, both the agency and the covered contractor should review and consider what, if any, accommodation they must offer.” 

If an agency needs a contractor to have its employees start working on a contract before becoming fully vaccinated, “the agency head may approve an exception for the covered contractor—in the case of such limited exceptions, the covered contractor must ensure these covered contractor employees are fully vaccinated within 60 days of beginning work on a covered contract or at a covered workplace,” the guidance stated. “The covered contractor must further ensure that such employees comply with masking and physical distancing requirements for not fully vaccinated individuals in covered workplaces prior to being fully vaccinated.”

The guidance provides definitions for key terms associated with the mandate and a “frequently asked questions” section. 

Last week, the Biden administration released guidance on implementing the mandate for federal employees, which also had some information for contractors on how they could go above and beyond the minimum requirements. 

“Agencies are strongly encouraged to incorporate vaccination requirements into contracts that are not covered by Executive Order 14042, consistent with applicable law,” said the September 16 guidance. “This might include, for example, incorporating vaccination requirements into contracts in advance of when they are otherwise required by the executive order or incorporating requirements into contracts that are not covered by the executive order, such as contracts under the Simplified Acquisition Threshold.”

David Berteau, president and CEO of the Professional Services Council, which represents over 400 companies that contract with the federal government, previously told Government Executive that the simplified acquisition threshold says that “anything under $250,000 as a contract is exempt from a lot of the rules.”

The September 16 guidance also touched on the attestation process for contractors ahead of being contractually obligated to get vaccinated and what happens if agencies have reasonable suspicion that contractors lied on their attestation forms. 

Guidance from the task force released on September 13 said that before contractor employees are “contractually required to be vaccinated,” those who are not fully vaccinated and not part of an agency testing program, must show a negative coronavirus test no more than three days old before entering a federal building.